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Show 184 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES Texas. -In Texas, on the contrary, the relation of Spanish-Mexican law to present day riparian rights chiefly for irrigation use has been a major issue.111 During the long period extending from the date of the first riparian case to 1926, when Motl v. Boyd112 was decided, the Texas courts in discussing riparian questions were concerned chiefly with the common law and, except in one early case, had little to say about the civil law or about Spanish-Mexican colonization laws.113 In Motl v. Boyd, however, speaking through Chief Justice Cureton, the Texas Supreme Court by dictum broke away from this long trend and dealt at length with Mexican colonization laws and with laws and policies of the succeeding Republic and State governments-including adoption of the common law-as sources of riparian water rights. The court was of the opinion that the policy of the Mexican Government-as well as its successors-in granting lands was to recognize the right of the riparian owner to use water not only for domestic and household purposes, but for irrigation as well. It is important to emphasize the fact that this statement -was dictum. Until 1962, the supreme court had not questioned the soundness of the holdings in Motl v. Boyd; although, their accuracy and legal soundness as precedents had been seriously questioned by some writers and speakers while stoutly defended by others.114 In 1962, the supreme court in Valmont Plantations v. State of Texas, affirmed the decision of a lower appellate court holding that the dictum in Motl v. Boyd was erroneous and that no Texas court until that time had been called upon to decide whether Spanish and Mexican land grants have appurtenant irrigation rights similar to the common law riparian right.115 A brief discussion of the events leading to this decision follows. 111 State v. Valmont Plantations, 346 S. W. (2d) 853 (Tex. Civ. App. 1961), affirmed, 163 Tex. 381, 355 S. W. (2d) 502 (1962). 112Motl v. Boyd, 116 Tex. 82, 286 S. W. 458 (1926). 113See Hutchins, Wells A., "The Texas Law of Water Rights," pp. 3-6, 131-151 (1960). 114 For diverse viewpoints, see Proceedings, Water Law Conferences, Univ. of Texas: Mann, G. C, "Riparian Irrigation Rights as Declared and Enforced by the Courts, and Protected by the Statutes, of Texas," pp. 167-187 (1952, 1954); Davenport, Harbert, "Riparian vs. Appropriative Rights: The Texas Experience," pp. 138-168 (1952, 1954); King, Neal, "Some Irrigation Law Problems Peculiar to the Lower Rio Grande," pp. 294-307 (1952, 1954); Wilson, Will, "Reappraisal of Motl v. Boyd," pp. 38-43 (1955); White, A. A., "The Flow and Underflow of Motl v. Boyd," pp. 44-60 (1955). See also Davenport, Harbert and Canales, J. T., "The Texas Law of Flowing Waters, with Special Reference to Irrigation from the Lower Rio Grande," p. 82 (1949), republished in 9 Baylor Law Rev. 138, 283 (1956); Davenport, "Development of the Texas Laws of Waters," 21 Tex. Rev. Civ. Stat. Ann. pp. XIII to XXXIX (1953); White and Wilson, "The Flow and Underflow of Motl v. Boyd," 9 Southwestern Law Journal 1, 377 (1955). See also, in this connection, Dobkins, Betty Eakle, "The Spanish Element in Texas Water Law," particularly ch. V, "Spanish Water Law in Texas, 1821-1958," and ch. VI, "Rulings on Spanish Grants in Texas v. Valmont Plantations" (1959). 115 Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S. W. (2d) 502 (1962), affirming, 346 S. W. (2d) 853 (Tex. Civ. App. 1961). |